Tbe first error assigned, is tbe decision of tbe court in allowing tbe award to be read to tbe jury as evidence. It does not appear wbat objection was made to tbe introduction of tbis paper in tbe court below, and for tbis reason, we are justified in sustaining tbe ruling there made. Tbe party should show, by bis exceptions, wbat was tbe objection urged, and decided in tbe District Court. Tbis court cannot pass upon objections, not insisted upon in tbe trial below. Any other rule, would be unjust and dangerous in tbe extreme. It is insisted here, however, that tbe award should have been rejected, because it was not signed by all of tbe arbitrators, and tbis objection, we will notice. Tbe Code gives tbe parties, in making these amicable settlements, tbe power to agree upon tbe rules that shall govern tbe arbitrators. Section 2108. It appears from tbe agreement of submission, that tbe matters in controversy, were submitted to seven persons, and their award, or that of a majority,'was to be a final settlement between tbe parties. Tbe award offered, was signed by five of tbe arbitrators. Tbe parties then agreed, that tbe award of tbe majority should be as binding, as if made by tbe entire number. Tbis was one of tbe rules which they, by their agreement, prescribed in tbis settlement. And therefore, if independent of such agreement, such award would be legally defective (which is not conceded), in tbis instance, tbe objection cannot prevail. Tbe defendant made bis own terms and rules, in tbis respect, and by them be must be governed.
' It is next urged, that tbe court erred in giving tbe instructions asked by plaintiff, in relation to tbe credit indorsed on tbe award. To determine tbis, it becomes necessary to refer *48to a portion of tbe pleadings. In Ms petition, the plaintiff avers, that $67 of the credit so indorsed, was a mistake; that upon the agreement of defendant, that plaintiff should have a certain lot of lumber to that amount, he consented to give him the credit; but that defendant had refused to let Mm have the lumber, but had appropriated the same to his own use; and that the credit was therefore to that amount, incorrect. This averment is not denied by the answer, nor is any reason given for not denying it, and is therefore to be taken as true. Code, § 1742. The credit, then, to 'this extent stands admitted to be a mistake. The jury were bound to disregard it, in making up their verdict, and with reference thereto, the instruction was not erroneous. But for this, the instruction would have been clearly erroneous; fox generally, a defendant is not bound to prove the correctness of a credit that is so indorsed. But it is claimed, that the instruction is general, and by its language includes the entire credits. And so it does; but as it is evident from the record, that the jury allowed the balance of said credits, in making up their verdict, no prejudice resulted. This court will not reverse a cause, when an erroneous instruction has been given, if it appears that the party complaining suffered no inj ury therefrom.
The third error assigned, relates to the rejection of the testimony proposed to be elicited from one of the arbitrators. It appears that’ defendant resisted the award, for the reason, among others, that errors and mistakes had been made by tbe arbitrators, which consisted, in part, in their assuming without evidence, that the mill sawed two thousand feet of lumber each day, during the time for which plaintiff claimed one-half of the profits. Under this allegation, he proposed to prove, that no testimony was introduced to show what were the net profits of the mill. While the object of the offered testimony, is not conclusively clear, yet we think it sufficiently evident, that the defendant sought to prove by tbe arbitrator, that no evidence was given before them relating to the profits of the mill. This would appear to have been a material point in the controversy submitted to tbe *49arbitrators, if not indeed, the whole matter in dispute. The question then arises, was this testimony admissible ? And our answer must be, that it was. The court below seems to have rejected it upon the ground, that no testimony was admissible to show what took place prior to the retirement of the arbitrators to make up their award; and that though they might have allowed or rejected testimony, the award could not for that reason be impeached, unless such allowance or rejection was for the purpose of defrauding one of the parties. We do not understand, however, that an award may not be impeached for other causes, as well as for fraud. If matters are considered by the arbitrators which were not submitted; if they shall commit such material errors or mistakes as prejudice either party; or omit to consider matters which were submitted; for these, and for other causes, as well as for fraud, the award may be rejected by the court to which it is returned, or impeached when an action is brought to enforce it. That this is well settled in this country, is no longer to be doubted. 1 Greenlf. Ev. § 78; Roof v. Brubacker, 1 Rawle, 304; Zeigler v. Zeigler, 2 Serg. & Rawle, 286; Davis v. Depew, 2 G. Greene, 260; Chitty on Cont. § 986. In the section above referred to, Mr. Green-leaf expressly states, that while ordinarily arbitrators are not bound to disclose the grounds of their award, yet they may be examined to prove that no evidence was given upon a particular subject; or that certain matters were, or were not, examined or acted upon by them; or that there is a mistake in such award.
As we understand it, the defendant in this case, proposed to prove that no evidence was given before the arbitrators upon a particular subject. This he had a right to do, and to refuse him the right, was error. The effect of the evidence is, of course, another question. The whole burden of proof, in this respect, is on the party who attacks the award. It is for him to clearly satisfy the jury, of any mistake, as also that he was prejudiced thereby. Unless some material error or defect is apparent on the face of the award, it cannot be *50avoided, unless tbe other errors and defects complained of, are shown fully and clearly.
As tbe case must be reversed on tbe third assignment, it becomes unnecessary to examine tbe alleged error of tbe court, in refusing to give tbe instruction asked by defendant. It appears to have been refused upon tbe ground, that it bad been substantially given in a previous instruction. In tbe case of Webster et al. v. Raner, in this court, our predecessors held, that a court could not refuse a proper instruction,, though tbe same may have been given in a different form.. We refer to this case now, not for tbe purpose of applying it to tbe one at bar, or as indicating a concurrence therein, but for tbe purpose of saying, that if this is not tbe correct rule, then tbe instruction given, as well as tbe one refused, should be before us. Otherwise, we could not judge, where a correct instruction appeared to have been refused, whether there was a substantial difference, being concluded, in its absence, by tbe statement of tbe bill of excejDtions, that tbe same bad been previously given.
Judgment reversed.